Thursday, November 24, 2016

One of the leading opponents to
apartheid, and later a prominent critic of Israel, John Dugard spoke with New
Matilda’s Michael Brull recently.

When John Dugard came to
Sydney, I was excited. I have a lot of respect for him, and was going to not
only meet him, but interview him at length. Dugard has a tremendous record of
advocating for principles of human rights and anti-racism, first in apartheid
South Africa, then in Palestine.

Most people I know haven’t
heard of Dugard. It was only in law school that I learned about his record. I
conducted some research into law and apartheid in South Africa, reading through
back issues of law journals, to see what legal academics had to say at the
time. Aside from those praising Dugard, and what Dugard himself wrote, much of
the literature came back to Dugard in some way or other.

In legal circles in South
Africa, Dugard’s contributions are widely known, and are treated with something
approaching reverence. From the early 1970s, Dugard wrote scathing critiques of
judges and legal academics in apartheid South Africa. He argued that whilst
judges claimed to be merely impartial upholders of the law, in fact they were
actively making choices to defend infringements on civil liberties and
injustice.

Dugard also acted as lawyer, or
legal consultant, in numerous cases challenging apartheid law and practices. In
1978, Dugard was the founding director of the University of Witwatersrand’s
Centre for Applied Legal Studies. This innocuous name masked its agenda: it was
a human rights centre.

Edwin Cameron – who worked at
the Centre for Applied Legal Studies in the ’80s, and later became a Justice of
the Constitutional Court – reviewed Dugard’s record in the South African
Journal on Human Rights.

Cameron noted that “Dugard
wrote at a time when the norm for academic critics was deference to the courts,
sometimes unctuous. By contrast, his writing was candid, honest and outspoken.”

For voicing his critiques,
Dugard “faced opprobrium and even prosecution (for quoting Dr Nthatho Motlana,
a banned person), but he did not waver.” Cameron concluded that “the clear
voice of Dugard’s denunciation of apartheid collusion by lawyers and judges
deserves credit as one of the reasons why today we have a law-based
constitutional order whose legitimacy is politically unquestioned.”

In the 1980s, there was a
famous debate between Raymond Wacks and John Dugard. Wacks argued that the
moral judge should resign from the apartheid bench. Dugard thought it was
better for them to do their best to make whatever humane rulings they could.

Despite their disagreement,
Wacks had nothing but respect for Dugard:

“Few students who have
passed through the University of the Witwatersrand School of Law in the last
twenty years will have failed to have been deeply inspired by Professor John
Dugard. As a teacher, he has encouraged almost a generation of future lawyers
to recognize the potential of law as a means of attaining justice and, at the
same time, to examine the extent to which the law of South Africa subverts that
very objective. His influence on the practice and teaching of law is, I
believe, considerable. He has, almost single-handedly, developed an important
jurisprudence of the erosion of human rights in this country and, in the
process, won international recognition and respect as a tenacious champion of
liberty in a society in which it is under relentless siege.”

Ismail Mohamed was appointed by
Nelson Mandela as the Chief Justice of South Africa in 1996. In 1998, Mohamed
said that one

“clear truth needs vigorously
to be recognised: the contribution of John Dugard and the small coterie of
young and vigorous academics whom he attracted, in chiselling away at the very
foundations of orthodox jurisprudential perspectives in South Africa and in
restructuring the moral and jurisprudential values of generations of lawyers
who began to permeate the practice and teaching of the law, has been among the
most crucial, the most profound and the most decisive even if not the most
visible of the influences which have impacted and which will continue to impact
on the structure of our legal universe.”

More simply, legal academic Max
Du Plessis observed that “Dugard is regarded by many as the father of human
rights in South Africa”.

Du Plessis observed that though
Dugard was among the final 10 candidates considered for the Constitutional
Court by Mandela, he was “not appointed despite his towering stature”. Dugard
went on to receive a prestigious Chair in international law at Cambridge
University, and served as a judge on the International Court of Justice.

In 2000, Dugard was appointed
to a United Nations Commission to investigate human rights violations in
Palestine during the outbreak of the Second Intifada. In 2001, he was appointed
the UN Human Rights Council’s Special Rapporteur on human rights in the
Occupied Palestinian Territories.

Meeting Dugard

New Matilda’s Michael Brull
pictured with John Dugard in Sydney recently.

I met Dugard in the lobby of
his hotel in the Sydney CBD in the early afternoon. I had no idea where a quiet
place to talk would be, and so I dragged him to a pub which I hoped would be
empty and quiet.

Dugard was friendly, if not
particularly warm. His manner was unassuming and modest. Despite his
considerable accomplishments and stature, Dugard has none of the
self-importance I’ve found to be common among eminent jurists.

Over the course of the
interview, he is restrained and measured. He doesn’t use strong language on
anything, or exude any particular emotions. When discussing injustice, Dugard
rarely rises to the level of indignation. If I were to summarise Dugard in
three words, they would be humble, earnest, and humane.

The case for apartheid is so
convincing. You cannot dispute it

I asked Dugard if he knew much
about the issues when he was appointed to investigate Palestine for the UN. He
said that he visited Israel and Palestine in the 1980s, and “already had the
sense of déjà vu, seeing what happened in the Palestinian territories, thinking
that I’d already seen it all before in South Africa”. I noted that Dugard had
seemingly become more critical of Israel, only comparing its practices to
apartheid in 2006.

Dugard explained that he was

“aware of the similarities
between the South African apartheid system, and the system in Israel, well
before 2006. But I deliberately refrained from drawing the comparison, because
my reports were already highly controversial, and I felt that to draw the
comparison with apartheid would distract from other features of my reports. The
Western states in particular were very critical of my reports. I felt quite
rightly in retrospect that they would be so annoyed with the fact that I
compared the situation in the Palestinian territories to that of apartheid
South Africa that they would not take my report seriously. So that’s why I
deliberately refrained from drawing the comparison until 2006.”

I asked, “So what changed in
2006?”

“Well it became very obvious
what was happening in the Occupied Territories was a form of apartheid, that
the settlements continued to grow, that the construction of the wall resulted
in the seizure of more and more land, there was more political repression. So,
I just felt that it was wrong not to make the comparison.”

I noted that some, such as
Israeli scholar Uri Davis, and Palestinian scholar Saree Makdisi, have argued
that Israel doesn’t just practice Apartheid in the Occupied Territories, but
also within Israel proper, within the borders of the Green Line. I asked Dugard
for his response:

“I think it’s very clear
that apartheid is practiced within the Occupied Palestinian Territories.
Because you have two racial groups, you have the Jewish settlers, and the
Palestinians. The law discriminates very, very clearly against Palestinians.
Also you have systematic repression of Palestinians, which resembles the kind
of repression that blacks were subjected to in South Africa. And thirdly, you
have the territorial fragmentation, which resembles the old Bantustan system.
Now these are features which are peculiar largely to the Occupied Palestinian
Territories…

Also, if I look at the 1973
Convention on the Suppression and Punishment of the Crime of Apartheid. It’s
very easy to judge the system that applies in the Occupied Territories to be
apartheid in terms of that Convention.

But when it comes to Israel
itself – the position is more difficult, because Palestinians do have a
franchise, they do have representation in the legislature, in the Knesset. They
are able to, and do in fact sometimes hold high office. There are
discriminatory laws, there is some repression, but it’s not on the same scale
as in the Occupied Palestinian Territories. And of course there’s no
territorial fragmentation of the kind one finds in Occupied Palestinian
Territories.

Also, strategically, I think
it’s wiser to focus more on the Occupied Palestinian Territories, because it’s
so clear there. Israelis who dispute the analogy always come back to arguing
that it doesn’t apply within the Green Line. And it is an arguable case.“

Dugard concluded that when it
comes to the Occupied Palestinian Territories, “I think the case for apartheid
is… so convincing… You cannot dispute it. It’s just so clear.”

“You can’t underestimate the
power of labelling a person as anti-Semitic”

Over the course of the
interview, Dugard repeatedly stressed that he faced more vilification for his
views on Palestine than for his opposition to apartheid in South Africa. He
said

“I faced much more
opprobrium for my views on Palestine than I ever did on my views on apartheid
in South Africa. In the community in which I moved, which was the predominantly
white liberal community, but also liberal black community, my views were shared
and admired, and so there was very little opprobrium.”

Dugard said that

“You can’t underestimate the
power of labelling a person as anti-Semitic. It’s a very powerful weapon.
Politicians can be destroyed overnight by being labelled as anti-Semitic.
People are socially ostracised… I do experience, I have felt social ostracism
because of my views on Palestine, in a way which I never felt because of my
views on apartheid.”

I asked Dugard to elaborate on
his experiences of being called anti-Semitic for his criticisms of Israel.

“When I used to go to the
United States during the apartheid years, I was always welcomed as some sort of
folk hero, involved in the struggle. Now when I go to the United States and I
express views critical of Israel, I’m simply rejected, and not taken seriously.
And of course, one is inevitably excluded from opportunities. I realise that in
the academic world and the professional world I have been excluded to some
extent for my views on Palestine. I’m at the stage where it doesn’t really
matter much, I’m at the end of my career. But young lawyers, or young scholars
have to take account for the fact that if they do express views in favour of
Palestine they are likely to suffer.”

“We always felt the academic
boycott was unfair”

I asked Dugard about the role
of boycotts, divestment and sanctions in the struggle against South African
apartheid. Dugard said that he was affected by it.

“Like other South Africans, I
had limited access to cultural life and sporting life as a result of those
sanctions. I was legal adviser to Bishop Desmond Tutu who advocated sanctions.
In theory it was unlawful to advocate sanctions abroad. And every time Tutu
went abroad, he did advocate sanctions abroad, and every time he returned, I
would meet with him and warn him that ‘you might be prosecuted’ but in fact he
was never prosecuted.”

Dugard was particularly
affected by the academic boycott.

“We always felt the academic
boycott was unfair, because in South Africa there were universities,
predominantly Afrikaans language universities that supported apartheid, and
English language universities that did not. But we were all subjected to the
same academic boycott.

For instance, my university,
the University of Witwatersrand institutionally proclaimed its opposition to
apartheid every year. We held a university assembly of all staff and students,
at which we declared our opposition to apartheid and committed ourselves to
ending apartheid and opening the university to all races. So we felt that we
were doing all that we could to oppose apartheid and it was therefore unfair
that we should be subjected to the academic boycott.

And certainly it was very
strict, I was able to travel the United States to speak at American
universities, and also English universities, but I was completely excluded from
university life in Europe during that period, the Western European states were
very, very strong in their opposition to apartheid.”

Dugard on UN reports on
Israeli attacks on Gaza

Dugard headed his own mission
to investigate war crimes during Israel’s war on Gaza from 2008-2009, and wrote
a lengthy report on it. I asked him how he thought his report compared to the
one prepared by the Human Rights Council mission, led by his fellow South
African jurist, Richard Goldstone. Dugard said he is “great friends” with
Goldstone. He said that there “was very little difference between our reports”,
describing Goldstone’s report as “excellent”. Dugard thought that it was “a
pity that it was discarded”.

“It’s interesting, Richard
Goldstone withdrew one small section of the report. He said that on second
thought he had doubts about whether Israel had acted deliberately in targeting
civilian targets. That was a small section of the report, but that allowed the
international community to discard the report as a whole. I think that it’s
very interesting, that Hillary Clinton, in the present election, has secured
Jewish funding for her presidential bid, inter alia on the basis of killing the
Goldstone report, and she certainly did, when she was Secretary of State, go
out of her way to destroy it.”

I commented that Goldstone
walked back the report in a famous op ed, though I didn’t think there was any
new evidence to justify his claims. Dugard agreed, “Yes I’m not satisfied with
his explanations at all.” I asked him if he had any speculation as to why
Goldstone had done so.

“I’ve had discussions with
him, and this remains a mystery to me. He hasn’t given any satisfactory
explanation for his change. But I can understand the kind of pressure to which
he was subjected. He was subjected to pressure from the Jewish community in
Johannesburg. But I don’t think that was the reason. I think there was pressure
from other sources, and I do not know. But I do know [as]someone who had been
on the receiving end of hate mail and accusations of anti-Semitism that it’s
not a very pleasant situation.”

I asked Dugard what he thought
of the Human Rights Council’s report on the war on Gaza in 2014, known as the
McGowan Davis Report. He replied that:

“It’s certainly not as good
as the Goldstone report. It’s not as comprehensive, and it’s not as insightful,
and it’s not as strong in its criticisms. It does make the point that serious
crimes were committed, but it lacks the force of the Goldstone report.”

As readers may know, I thought
the report
was dreadful. I said “I guess I thought that it was very equivocal in that
it didn’t necessarily take in all of the evidence, and that when it had the
evidence it reached very, very weak conclusions, from the evidence it cited.”
Dugard replied,

“Yes I think you’re right. The
conclusions were weak, the evidence was there. But I think in the case of the
Goldstone report, they took account of the evidence and they drew firm
conclusions. The McGowan Davis report was weak on conclusions. So I found it a
slightly disappointing report.”

Dugard on Norman
Finkelstein: “probably the most serious scholar on the conflict”

I commented to Dugard that the
American scholar Norman Finkelstein has argued that the human rights literature
on the 2014 war was a lot thinner than the many quality reports on the war in
2008-2009. I asked why Dugard thought that was.

He told me to “read [Finkelstein’s] book on the subject, which is still
to appear.” Dugard had “read it in proof… Norman Finkelstein has written an
excellent book on the Gaza conflicts, not only on Protective Edge, but also on
Operation Cast Lead. And I know he’s having difficulty in finding a publisher,
but it’s really an excellent book.”

Dugard said that the book is
“quite brutal, but it’s good.” He says that Finkelstein is a “very serious
scholar, and he’s been unfortunately discredited by people like Dershowitz.”

I asked Dugard what he thought
of Finkelstein’s work more generally.

“Well, as I’ve said, he’s a
very serious scholar. He has strong views, he has an independent mind. For
instance, he’s been critical of certain aspects of BDS. He’s not afraid to
speak his mind on all subjects. I really do think that he should be recognised
as probably the most serious scholar on the conflict in the Middle East. And
it’s unfortunate he has difficulty in finding publishers for much of his work.”

Dugard had a debate with Dershowitz
in August 2014 about the war in Gaza. Neither of them were present in person at
the debate, but they were both beamed in via Skype. Due to technical
difficulties, Dugard’s voice was broadcast, but his face was not. I asked
Dugard about the experience. He acknowledged of Dershowitz that “there was a time when he
was a very distinguished academic”. However, “today he’s become very
much a political figure and he’s a skilled debater, but he also engages in
extravagant…” Dugard paused for a moment… “falsehoods. So I didn’t enjoy it.”

Those who believe in a
single state solution are being very naïve

I asked Dugard if he supported
a two-state solution to the conflict.

“I always have been, and I
would like to see a two-state solution materialise, because I do think that’s
the best way to secure peace in the region, because I really don’t see a single
state being a peaceful state. Because initially there will be a Jewish minority
that controls the state, and that will lead to the kind of tension that we had
in apartheid South Africa. And later I suspect that when the Palestinian Arab
majority becomes the government, they will be discriminating against the Jewish
minority.

So I think those who believe
that a single state will be a peaceful democratic state in which Jews and Arabs
will live peacefully together are being very naïve. I do think that a two state
solution offers the best solution for a peaceful resolution of the dispute. But
as I’ve indicated, I think that Israel is making a two-state solution virtually
impossible, so we have to come to terms with the possibility of a single
state.”